Dying to be heard: Families, safety advocates often frustrated at lack of action on inquest findings

Scores of recommendations from coroners’ inquests and fatality inquiries across Canada go ignored or unheeded every year despite their potential to prevent future deaths, a Postmedia News investigation has found.

While provincial governments throw money and time into these public probes of sudden or violent deaths — about 100 inquests or inquiries were held last year alone — they devote few resources to tracking recommendations or sharing inquest findings with the public.

As a result, family members who had hoped that at least some good could come from a loved one’s death are often left in the dark, disillusioned and with no sense of closure about inquest results. Safety advocates are equally frustrated by the patchwork followup to these fatality probes across Canada.

Public agencies that are the target of recommendations, which are non-binding, say they take inquests seriously but can’t be expected to implement each idea that springs from them. Some recommendations aren’t practical, they say, or are too costly, and the best they can do is follow the “spirit” of the recommendation.

Among some of the key findings from the Postmedia News investigation:

–Not all provinces post inquiry verdicts and recommendations online, making it difficult to hold agencies accountable for making changes that could avoid future deaths. Critics say a lack of accountability and transparency has allowed public agencies to cherry-pick which recommendations to act on.

–Police agencies appear to be among the most reluctant to respond to inquest recommendations, with the same recommendations surfacing time after time.

–Although people are dying under similar circumstances, inquest outcomes tend to be viewed in isolation; there are few attempts to identify patterns or trends or to share lessons across provinces. This gap is evident when examining deaths involving children and seniors.

–In workplace fatalities, there is no consistency in determining which cases go to an inquest. Inquests are mandatory for mining and construction fatalities in some provinces, for instance, but not in others.

–While some provinces ask agencies for written responses to inquest recommendations, the responses are typically not scrutinized — amounting to what some critics call an “absurd honour system” that raises the question of whether the inquest followup is just a paper exercise. Other provinces, meanwhile, don’t even bother asking for written responses.

–Getting copies of written responses to inquests isn’t easy. In British Columbia, for instance, provincial staff initially wanted to charge Postmedia News hundreds of dollars for records the coroner’s office later provided free. In Saskatchewan, the release of records first had to be approved by the chief coroner. In Ontario, retrieval of some records took several weeks because they were stored in archives.

Julian Falconer, lawyer for the family of Ashley Smith, speaks to members of the media after jurors at the Ashley Smith prison-death inquest announced a verdict of homicide at the Coroners Courts in Toronto, Thursday December 19, 2013. [Peter J. Thompson/National Post]

The conflict between an inquest’s intent and the reality of followup is apparent in the recent Ashley Smith case. Smith was the young woman whose self-strangulation in an Ontario prison was the subject of a lengthy inquest last year.

In December, the jury delivered 104 recommendations aimed at improving the federal corrections system’s handling of female inmates with severe mental illness. Yet even before the inquest verdict, Correctional Service of Canada commissioner Don Head warned that the jury shouldn’t make costly recommendations as there was “no free pocket money” available.

Signalling that it didn’t want its conclusions ignored, the inquest jury asked Canada’s auditor general to review the correctional service’s response to the recommendations.

Ghislain Desjardins, a spokesman for the auditor general of Canada, told Postmedia News the office has “no plans” to follow up on the jury’s recommendations since it cannot do every audit asked of it. “We consider each request in light of our mandate, the significance of the issue raised, our audit schedule, and our available resources,” he said.

The Smith inquest was reported nationwide, partly because of the dramatic evidence, including video, about the teen’s treatment in custody. But inquests and fatality inquiries have issued specific recommendations in a host of areas, such as: improving prescription drug safety; adding video cameras in police cars; placing restrictions on children riding all-terrain vehicles (ATVs); better ways to prevent domestic violence; better protection for seniors in care homes; and measures to prevent deaths in underground mines. The same recommendations are often reached in similar cases, but many are simply not acted on.

Britain recently overhauled its coroners system, appointing a new chief coroner to oversee all 96 coroners in England and Wales and setting new national standards for death investigations. Part of the chief coroner’s duties is sending an annual report to Parliament summarizing key recommendations from inquests and responses to them.

Canada has no such federal oversight. It falls to each province to work with its own coroners and medical examiners to set rules. Federal officials said they see no reason to change this.

A family’s pain

Neil and Rhonda Carlin’s 18-year-old daughter, Sara, committed suicide by hanging herself in the family basement in 2007. She had been taking an anti-depressant medication, Paxil, during the 14 months leading up to her death. (Logan Newell/Special to Postmedia)

Neil Carlin found his 18-year-old daughter, Sara, hanging from an electrical cord in the basement of the family’s Oakville, Ont., home on May 6, 2007. A bottle of the anti-depressant medication Paxil, which her family doctor had prescribed to her 14 months earlier, was found at the scene.

Although a forensic pathologist had concluded the immediate cause of death was hanging while under the influence of cocaine and alcohol, her family strongly believed her death was linked to her ongoing use of Paxil. A Health Canada advisory had warned that Paxil should not be used by children under 18 (Sara was 17 when prescribed the medication) and that there was evidence taking the drug could increase the risk of suicidal thinking.

Carlin and his wife, Rhonda, successfully pushed for a public inquest. Following 10 days of testimony from 31 witnesses, a jury issued 16 recommendations on June 28, 2010. Although it stopped short of identifying Paxil as a contributor to Sara’s death, the inquest called for greater care in how such drugs are prescribed. Carlin thought the recommendations were “bang-on” and hoped that, if adopted, they could save lives.

More than three years later, most of the key recommendations have gone nowhere:

–The jury recommended that Ontario’s College of Physicians and Surgeons develop clinical guidelines and training for family doctors on administering selective serotonin reuptake inhibitors, such as Paxil, and monitoring patients taking them. The guidelines should make sure doctors inform patients of potential side effects, the jury said. Instead, the college wrote to the coroner’s office indicating that it “does not usually produce standards with respect to clinical activities.” That role usually falls to “specialty bodies.” The college suggested the Institute for Safe Medication Practices. That institute said developing clinical guidelines was “not within the scope and expertise of our work.”

–The jury also recommended that the Ontario College of Physicians and Surgeons require doctors to report to Health Canada all serious adverse drug reactions. The college did adopt a new policy in December 2012 for doctors to report adverse drug reactions, but the reporting is not mandatory.

–The jury recommended that Health Canada approve a drug only after receiving results of all clinical trials from the drug’s manufacturer. This was based on evidence that drug companies “do not necessarily report the results of trials which do not demonstrate a benefit of their product.” Health Canada says it recognizes the importance of transparency of clinical trials but is still talking to stakeholders and partners.

–The jury recommended the federal government create an arm’s-length Drug Safety Board — with no funding from drug companies — that would investigate adverse drug reactions and issue warnings to the public. So far, no Drug Safety Board has been created. The government in 2009 created a Drug Safety and Effectiveness Network within the Canadian Institute for Health Research. Critics point out that a member of CIHR’s governing council is an executive for a drug company, Pfizer Canada.

–The jury also called on Ontario’s Ministry of Health and Long-term Care to develop an electronic database to monitor all drugs dispensed in Ontario, and to develop a provincewide suicide prevention strategy. The ministry wrote to the coroner’s office Jan. 4, 2011, that it would develop such a database, but it never happened. The idea was “too costly and would take too long to deliver,” said David Jensen, a ministry spokesman. No suicide prevention strategy was created either. The province did roll out a mental health and addiction strategy in 2011 with the focus, in the first three years, being children and youth.

The outcome has left the Carlins deflated.

“We realized it’s a bullsh–t process,” Neil Carlin said. “They go through the motions to give the public a sense of confidence they’re on top of it. Nobody really cares or follows up.”

The inquest that the Carlins had pushed for became, in their eyes, nothing more than “window-dressing.”

“It’s sort of a hollow victory,” Carlin said.

Hodgepodge of rules

A hodgepodge of procedures governs how inquest recommendations are tracked.

Some provinces, including B.C., Saskatchewan, Manitoba, Ontario and Quebec, ask for written responses from agencies targeted by inquiry recommendations, typically within a year’s time.

“If they still don’t respond we don’t ask anymore.”

Copies of responses obtained by Postmedia News show that some agencies do prepare detailed responses and will even provide updated responses without prompting. But in other cases, the only written response on file was a letter saying the recommendations would be taken “under advisement” or were “under consideration.” Sometimes agencies promised to follow up but never did. One response delivered to the chief coroner in Saskatchewan after an inquest simply stated, “This will confirm that these recommendations have been reviewed and appropriate policies and procedures have been implemented to address the recommendations.”

What happens if agencies fail to respond? In some cases, not much.

“If they don’t send us such a response within about six months, we ask them again,” said Genevieve Guilbault, a spokeswoman in the Quebec coroner’s office. “After that, if they still don’t respond we don’t ask anymore.”

B.C. and Ontario coroners’ offices produce annual reports summarizing the outcomes of recommendations. In 2012, B.C. reported that 20.5 per cent of recommendations issued in 2010 had been “fully implemented,” 25 per cent were already enacted before the recommendations came out, and 25 per cent were under review. The remaining recommendations were rejected, had been directed at the wrong agency, or the agency didn’t respond, B.C. reported.

Ontario reported in late 2013 that 24 per cent of recommendations issued in 2011 had been implemented, would be implemented or had resulted in alternatives being implemented. The province also reported that the content or intent of 25 per cent of the recommendations were already in place by the time the recommendations were issued. The remaining recommendations did not receive a response, were under consideration, were rejected or were sent to the wrong agency, the province reported.

Critics question the reliability of such numbers since those provincial coroners’ offices basically rely on information provided to them by the agencies. Ontario allows agencies to self-assign a code to their responses, indicating whether they’re in compliance with inquest recommendations or not.

At the B.C. Coroners Service, spokeswoman Barb McLintock said the office just does not have the capacity to do an independent analysis.

“If an agency has said it has set up a committee to study a recommendation, we aren’t able to follow up to find out what the committee eventually said. Nor do we have the capacity to undertake independent analysis of how far a recommendation has been implemented. We are using the information provided to us by the agencies,” she said.

Agencies’ claims that they are complying with recommendations are often suspect, said Julian Falconer, the Toronto lawyer who represented the family of Ashley Smith at her inquest.

“When you peel away the layers, there’s a great deal of puffery,” he said. “It’s clear there is a significant gap … from the creation of recommendations to implementation of recommendations.”

Alberta, meanwhile, doesn’t even bother collecting written responses. Alberta Justice spokeswoman Michelle Davio said the medical examiner’s office used to collect written responses, but the practice was discontinued in 2011 “as it was not required under the Fatality Inquiries Act and is not part of the mandate of the OCME.”

Asked how a member of the public is supposed to know what becomes of an inquiry’s recommendations, Davio said the person would have to directly contact the responding agency.

Relying on the media

Dr. Dirk Huyer, interim chief coroner of Ontario poses in a courtroom in the new Forensic Services and Coroner’s Complex in Toronto on December 10, 2013. (Glenn Lowson/Postmedia News)

Some inquest officials say that, given the lack of resources to assign staff to follow up on recommendations, they often rely on the media or outside advocacy groups to pressure public agencies.

“We sort of depend on the media to make sure people realize what’s going on — that there was a recommendation, it wasn’t implemented, and here we go again,” said Rodrick MacKenzie, the coroner’s counsel in B.C.

Former Toronto criminologist Myles Leslie wrote in a journal article last year that a senior manager in the Ontario coroner’s office told him the office relies on threats of “media exposure” to gain acknowledgment of and compliance with recommendations.

“I like to believe that professional organizations and government organizations and non-government organizations where we send our recommendations to — I like to believe that they have the best desire to improve,” he said.

“I don’t think people are running from our recommendations. I think they may find our recommendations challenging at times. But I think everybody wants to get better and wants to improve.”

Huyer pointed to the province’s announcement last May that it was mandating sprinklers in retirement homes and long-term care facilities, making it the first province to do so. This was a key recommendation out of an inquest a year earlier into the deaths of four seniors in a retirement home fire in Orillia, Ont.

But three previous inquests stretching back to the 1980s had made the same recommendation, the inquest heard.

Inquest officials said while recommendations are important, the main purpose of an inquest is a public airing of the facts surrounding a death — when, where, how and in what manner did a person die? — and inquests generally do a good job of that.

“Most people afterward, you can see a change in the families, like a relief,” MacKenzie said. “A burden’s been lifted for them. At the end, it’s almost always hugs and kisses for me and the other people involved from the family.”

But Lawrence Greenspon, an Ottawa lawyer who has appeared at many inquests, said by the time an inquest starts, most families already know most of the details surrounding their loved one’s death. What they want to know is how to prevent future deaths.

A: A hearing into an unexpected, sudden or unexplained death. It aims to find out the circumstances surrounding a death and make recommendations to prevent future deaths. Unlike a trial, it is strictly fact-finding: There is no assigning of blame or fault. Depending on the province, some inquests are presided over by coroners and involve a panel of jurors, while others are presided over by provincial judges or lawyers. Inquests have probed police shootings, deaths of children in foster care, fatal fires in retirement homes, accidents in underground mines and in-custody deaths, such as the high-profile case of Ashley Smith, the young woman who strangled herself to death in front of prison guards. Some take a few days, while others have stretched over months.

Q: What types of cases trigger inquests/inquiries?

A: Typically, in-custody deaths will trigger an inquest. Some fatalities that were the result of police use of force may result in one. Ontario requires that all mining and construction-related fatalities go to an inquest. If officials believe drawing attention to a case may help prevent future deaths, they may call an inquest. Children who have died while in government care and seniors who have died while in care homes are examples.

Q: How much do inquests/inquiries cost?

A: Postmedia News asked several provinces to provide estimates of how much they spent on inquests/inquiries during the 2012-13 fiscal year:

British Columbia: $366,388 (20 inquests, average of $18,000 per inquest)

Alberta: $760,000 (19 inquests, average of $40,000 per inquest)

Saskatchewan: $80,000 (Four inquests, average of $20,000 per inquest)

Ontario: $503,000 (37 inquests, average of $13,500 per inquest)

Quebec: Required Postmedia News to submit a formal request; said no records could be located

Q: What documents related to inquests/inquiries do provinces make public?

A: B.C., Alberta and Manitoba post verdicts/recommendations on a website; copies are available upon request in Saskatchewan and Quebec; Ontario directs people to the CanLII website. After recommendations are issued, B.C., Saskatchewan, Manitoba, Ontario and Quebec ask agencies to provide written responses. Manitoba posts those responses online. Written responses in other provinces are available to the public if it asks (except Quebec, which requires a more formal request). Alberta stopped asking for written responses in 2011.